Jessica Machado v. Greater New Bedford Regional Vocational Technical High School (SPR 20240145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2024 SPR24/0145 Maria Fredette Records Access Officer New Bedford Regional Vocational Technical School District 1121 Ashley Boulevard New Bedford, MA 02745 Dear Ms. Fredette: I have received the petition of Jessica Machado, of the New Bedford Guide and Fall River Reporter, appealing the response of the New Bedford Regional Vocational Technical School District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 8, 2024, Ms. Machado requested, “[a]ll emails to and from the superintendent beginning Friday January 5, 2024 until Monday January 8[,] 2024, including all Monday emails.” The District responded on January 17, 2024, providing a fee estimate. Unsatisfied with the response, Ms. Machado petitioned this office and this appeal, SPR24/0145, was opened as a result. Fees - Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Maria Fredette SPR24/0145 Page 2 February 1, 2024 municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The District’s January 17th Fee Estimate In the District’s January 17, 2024 response, the District provided a fee estimate of $50.00. The District advised, “it is estimated that it will take about four (4) hours to complete these tasks of segregating and redacting the potentially responsive documents.” The District advised, “[t]he actual cost of the requested records may vary, however, the good faith cost estimate to comply with your request is $50.00 (2 hours at $25.00 per hour). Although our firm’s hourly rate exceeds $25.00, we have used that figure in developing a good faith estimate. The District reserves its right to petition the Supervisor of Public Records to charge an amount in excess of the $25.00 maximum hourly rate. M.G.L. c. 66, §10(d)(iv). Additionally, if you desire paper copies of any responsive records an additional cost of $.05 per page would be assessed.” In its response, the District stated, “...given the nature of your request, some responsive materials may contain personal and identifiable information pertaining to current District students, which are education and student records statutorily exempt from disclosure under the Public Records Law pursuant to the Family Educational and Rights Act (‘FERPA’), set forth at 20 U.S.C. § 1232g(a)(4)(A), and M.G.L. c. 71, §§ 34D and 34E, and 603 CMR 23.00. Likewise, any responsive records containing personnel information, the release of which would result in an unwarranted invasion of personal privacy, are also exempt from disclosure. See M.G.L. c. 4, §7(26)(c). . . .Finally, some records responsive to your request may contain material that is exempt from disclosure under the attorney-client privilege. Therefore, any email correspondence between the District and its attorneys for the purpose of seeking and/or responding to requests for legal advice will be withheld. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007). To the extent that any responsive records are withheld on the basis, the District will submit a privilege log detailing the basis for claiming the attorney-client privilege in accordance with M.G.L. c. 66, §10A(a). . . .” Although the District has opined that it is assessing a fee for four hours to segregate and redact the responsive records, it is unclear how the District requires this amount of time to produce the records. Specifically, it is uncertain how many pages of records the District intends to segregate or redact, and how many minutes per page the District requires to review the records. Further, although the District has explained that its fees include time to segregate or redact records under Exemption (a) and the attorney-client privilege, it is unclear if the estimated

Maria Fredette SPR24/0145 Page 3 February 1, 2024 4 hours include time to redact records under Exemption (c). See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). The District must clarify these matters. For the reasons discussed above, I find the District must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the District is ordered to provide Ms. Machado with a response to the request, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jessica Machado